the weight of evidence, or where, upon the trial, some rule or principle of law has been violated. Green vs. Brown, 3 Barb., 119 (120); Quackcnbush vs. Ehle, 5 Barb., 469 (471); McCready vs. Woodhull, 34 Barb., 180. Or, if there be an absence of evidence, or so great a preponderance of evidence against the finding, as to indicate prejudice, partiality, or corruption, or the like. Vansteenburgh vs. Hoffman, 15 Barb., 28 (31); Mazelli vs. New York and Harlem Railroad Company, 3 E. D. Smith, 98 (102); Brooks vs. Christopher, 5 Duer, 216 (219); Woodruff vs. Commercial Mutual Insurance Company, 2 Hilt., 122; Pearson vs. Fiske, 2 Hilt., 146. See also collaterally, Wiley vs. Slater, 22 Barb., 506.

So also, if there be a clear error in the report itself, rendering one portion inconsistent with another. Garrison vs. Howe, 17 N. Y., 458 (461).

And the rule as to conclusiveness will only be applied, where the grounds of the referee's decision are apparent upon the face of the report. Where the case involves distinct and alternative questions of fact, and the report is general, the court must necessarily act upon its own judgment, both as to the law, and as to the evidence. Scranton vs. Baxter, 4 Sandf., 5.

And, in Burhaus vs. Van Zandt, 7 Barb., 91, it was considered that the report of a referee in an equity case, should not be treated like the verdict of a jury, but should be generally reviewed, like the report of a master, or the decision of a vice-chancellor, under the former practice. The case was, however, reversed, and the decision of the referee sustained, 3 Seld., 523. The report above, does not, however, touch upon the above question, in direct terms.

Any imputation whatever of undue influence will, of course, vitiate the report. See cases above cited in section 234.

§ 237. Review, or Confirmation.

(a.) REPORT ON WHOLE ISSUE.

The report of referees upon the whole issue requires no confirmation, inasmuch as, by the terms of section 272, judgment may be entered thereon, without any special direction, as on the decision of a judge. Prior to the amendment of 1849, when this provision was inserted, this power was doubted. See Clark vs. Andrews, 1 C. R., 4, and Deming vs. Post, 1 C. R., 121; but, even then, the rule since adopted by the legislature, was maintained in Renouil vs. Harris, 2 Sandf., 641; 1 C. R., 125.

Under the Code of 1849, and down to 1851, review by means of an application at special term for a rehearing, was recognized. See Sim

mons vs. Johnson, 6 How., 489; Church vs. Rhodes, 6 How., 281; Watson vs. Scriven, 7 How., 9. But, since the latter year, the only mode of review upon the merits, is by appeal from the judgment. See Dana vs. Howe, 3 Kern., 306. The only cases to which a motion is applicable, are those where a correction is sought, or the report itself is impeached for irregularity.

(b.) EXCEPTIONS.

In order to lay ground for a review by appeal, for errors of law in the decision, exceptions must be filed and served within ten days, in the same manner as on the decision of a judge. Section 272. See last

chapter, section 232, under the head of Exceptions to Decision.

They must be taken, filed, and served in the same manner, and are subject to the same incidents; and the necessity of taking them ís equally paramount.

Unless exceptions are duly taken, and that in due time, errors of law in the decision cannot be brought up for review. Mills vs. Thursby (No. 11), 12 How, 417; Brewer vs. Isish, 12 How., 481; Johnson vs. Whitlock, 3 Kern., 344; 12 How., 571; Beach vs. Raymond, 1 Hilt., 201; 3 Abb., 78; Tremain vs. Rider, 13 How., 148; Cheeseborough vs. Agate, 26 Barb., 603; 7 Abb., 32; Marshall vs. Smith, 20 N. Y., 251; Mallory vs. Wood, 6 Duer, 657; 14 How., 67; 3 Abb., 369; Keegan vs. Western Railroad Corporation, 4 Seld., 175; Morris vs. Husson, Seld., 204; Tyler vs. Willis, 33 Barb., 327; 12 Abb., 465; Ferguson vs. Hamilton, 35 Barb., 427; Grant vs. Morse, 22 N. Y., 323; Ingersoll vs. Bostwick, 22 N. Y., 425.

But, under special circumstances, exceptions of this nature were allowed to be made and filed, nunc pro tunc, in Sheldon vs. Wood, 6 Duer, 679; 14 How., 18; Bortle vs. Mellen, 14 Abb., 228.

It has been held that it is not necessary to file exceptions, to enable a party appealing, to obtain a review at general term, upon a case. O'Neil vs. New York State Agricultural Society, 19 Barb., 162.

It will, however, as a general rule, be most imprudent to omit this precaution, under any circumstances, as, even admitting the principle, the omission will clearly preclude the party from carrying the case further. The better course is to take formal exceptions, in every case where a review is sought on the ground of error of law, or where such error is involved in the decision, and to make such exceptions specific and detailed, so as to raise in terms, every point on which the decision. is sought to be impeached, subjoining a separate general allegation of error. See Dean vs. Roesler, 1 Hilt., 420, as to the scope of a general exception, that the decision is against law and evidence.

In equity cases especially, exceptions to a report must be specific,

and must point out distinctly the errors sought to be reviewed. And a mere general exception will, in all cases, be insufficient. Lawrence vs. Fowler, 20 How., 407.

Since the amendment of section 272, in 1860, a referee's report may be brought up for review, on exceptions to the decision only, without making a case. Ferguson vs. Hamilton, 35 Barb., 427. See to the same effect, Brewer vs. Isish, 12 How., 481, decided before the amendment. But this course is only appropriate, where all that is sought to be reviewed is the referee's conclusion of law, and not error in the process by which he arrived at such conclusion.

(c.) SPECIAL REPORTS.

A report on a special question must be confirmed, before it can be acted upon by the court.

The course for this purpose is clearly pointed out by rule 32.

The report, when obtained, must be filed with the clerk, and an entry made by him of the filing. When filed, notice of such filing must be served upon the adverse party, from the service of which notice, the time of such party to file and serve exceptions will run. Unless such adverse party file and serve his exceptions, within eight days from the service of that notice, the report stands ipso facto confirmed, without any necessity for entry of a formal order, as heretofore.

When exceptions are so filed and served, they may be brought to a hearing at any special term thereafter, on motion of either party.

This regulation dates from the revision of the rules in 1858. Before that revision, it was necessary to obtain and enter an order of course to confirm the report, unless cause were shown, in eight days after service of notice of such order.

If the adverse party desire to present any objections to the report as filed, he must file and serve exceptions to it, within the time thus limited. But, to be available on points arising during the trial, the objections taken must also have been interposed when they originally arose. Belmont vs. Smith, 1 Duer, 675; 11 L. O., 216. If the party fail to file and serve his exceptions, his right to object will be gone, and the report will be conclusive against him. Vide Marshall vs. Smith, 20 N. Y., 251; Ketchum vs. Clark, 22 Barb., 319. Evertson vs. Givan, 16 How., 25, was decided before the rule was revised.

And, when his exceptions have been filed, such adverse party must present his objections before the report has been read in evidence, or he cannot raise the question on appeal. Ehlen vs. Rutgers Fire Insurance Company, 2 Bosw., 482; 6 Abb., 68. Under the rule in question, he

is entitled to bring them to a hearing on his own notice.

When exceptions have been filed by the adverse party, or where

further action of the court is required, the proper course will be for the prevailing party to move at special term for the confirmation of the report, and for the relief, of whatever nature, to which it entitles him; or for the latter only, where no exceptions are taken. Bantes vs. Brady, 8 How., 216; Elmore vs. Thomas, 7 Abb., 70; Belmont vs. Smith, 1 Duer, 675; 1 L. O., 216. See also Swarthout vs. Curtis, 4 Comst., 415; 5 How., 198; 3 C. R., 215. And a motion of this description has been held to be the only proper course, for obtaining the confirmation of a report, under an order made on motion or petition. Griffing vs. Slate, 5 How., 205; 3 C. R., 213. A motion of this nature may be heard in the first instance, at general term. Tracy vs. Tallmadge, 1 Abb., 460.

In Forrest vs. Forrest, 5 Bosw., 672, it is stated as the opinion of the court, that the practice, on reviewing a report of this nature, is governed by rule 32; that no case need be made, and that the proper papers on the motion, will be copies of the referee's report, of the testimony and proceedings, as detailed in the papers annexed to it, and of the exceptions of the adverse party. The point was not, however, directly passupon, time being given to the moving counsel to determine which course he would pursue.

ed

The report on a reference to report facts has, under the section, the effect of a special verdict, and an order, taking action upon it, is reviewable accordingly. Kirby vs. Fitzpatrick, 18 N. Y., 484. But any error committed in the course of the hearing before the referee, can only be reviewed, on exceptions taken in due course as above. Marshall vs. Smith, 20 N. Y., 251.

The review of the report on an executor's reference under the Revised Statutes, should be obtained, by means of a motion to set aside the report before judgment, and a consequent appeal. Boyd vs. Bigelow, 14 How., 511.

CHAPTER VI.

PROCEEDINGS FOR NEW TRIAL.

§ 238. Statutory and Other Provisions.

THE following portions of the Code have reference to this subject: The first requiring notice is section 264 (219). The first clause prescribes the course to be pursued on entering the verdict, and has been already cited, in chapter III. of the present book.

The remainder of the section runs thus:

If an exception be taken, it may be reduced to writing at the time, or entered in the judge's minutes, and afterwards settled, as provided by the rules of the court, and then stated in writing, in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not be sealed or signed, nor need a bill of exceptions be made. If the excep tions be, in the first instance, stated in a case, and it be afterwards necessary to separate them, the separation may be made under the direction of the court, or a judge thereof. The judge who tries the cause may, in his discre tion, entertain a motion, to be made on his minutes, to set aside a verdict, and grant a new trial, upon exceptions, or for insufficient evidence, or for excessive damages; but such motions, in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had.

This portion of the section dates from 1852.

Down to 1851, there were no special provisions upon the subject. Those of 1851 were to a similar effect, but entering more into special details.

Section 265 runs thus:

A motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict, or case reserved for argument or further consideration, must, in the first instance, be heard and decided at the circuit or special term, except that, when exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and the judgment in the mean time suspended; and in that case they must be there heard in the first instance, and judgment there given. And when, upon a trial, the case presents only questions of law, the judge may direct a verdict, subject to the opinion of the court at the general